Dialogue to the Bottom?

Dialogue is a favorite metaphor of constitutional designers and constitutional thinkers in the age of deliberative democracy. The idea that constitutional interpretation can take place through a communicative process – one in which judicial and political agents exchange pieces of information and ideology before reaching a settled result in reasoned, rational fashion – is very attractive indeed. Cast in this context, judicial review can be conceived not as a vertical exercise of supreme normative power by a few unelected officials but rather as an institutionalized mechanism for informing law- and policy-makers as to the constitutional implications of their measures, for facilitating experimentalism, and for enhancing ultimate accountability in the legal order, while at the same time ensuring protection of human and civil rights in specific situations.

A normative process that would likely qualify as “dialogic” according to familiar framings of the concept has been unfolding in Israeli constitutional politics over the past few years, with respect to the state’s treatment of undocumented migrants/refugees from northeast Africa. With the latest move taken by the Knesset just last month and future iterations by the Supreme Court certain to come, this story can serve as a telling test case for dialogic theories, with some sobering conclusions as to the effects of path dependence, populist sentiment, and electoral politics on constitutional discourse.

Without committing to any specific “beginning” to this ordeal – that, like every other aspect of the story, is highly contested – a few factual baselines are currently hardly disputable: between 2007-2012 tens of thousands of people from several African countries have entered Israel by crossing the then-unblocked Sinai border with Egypt (it is currently all fenced up). The reasons for their migration into Israel are disputed: some claim they are refugees fleeing precarious lives in war-ravaged home countries, entitling them to protection and accommodation under international and domestic refugee laws; others argue they are labor migrants, seeking to illegally join Israel’s work force with its comparably superior rights and wages. Two of the largest groups of migrants have come from Sudan and Eritrea – two countries to which Israel concedes it cannot expel them, as it would have normally done with other non-refugee illegal immigrants (Israel and Sudan do not maintain diplomatic relations; and Eritrea is too dangerous to allow return). These people are thus here to stay, at least for the foreseeable future. Most of them have taken up residence in a few poor neighborhoods in the center and south of Israel, and are employed in Israel’s low-wage, informal labor market.

Treating this as a threat to Israel’s sovereignty and to its cultural cohesion as a Jewish state, and building on the anger of Israeli residents of the few neighborhoods who were made to bear the social brunt of this wave of immigration, the Knesset legislated in 2012 an act authorizing the state to hold in detention illegal immigrants (statutorily termed “infiltrators”) whom it cannot expel for a period of up to three years. A constitutional challenge to the Supreme Court followed, and in 2013 the Court, in a nearly unanimous opinion of an enlarged 9-justice panel [English summary], struck down the legislation for its violation of Basic Law: Human Dignity and Liberty. The Court however postponed the decision’s entry into force by 90 days, and with several of the justices indicating that a milder infringement upon migrants’ liberty might pass muster, it effectively invited the state to try again.

Justice Ministry lawyers in charge of drafting legislation did just that: they read the Supreme Court’s opinion carefully, and recrafted a detention statute that, they hoped, would satisfy at least a majority of the justices in what was a certain petition to follow. The new statute, passed by the Knesset within two months of the Supreme Court’s decision, limited the maximum extent of detention to one year, and applied this sanction only to new “infiltrators” who would enter the country from then on (a meager group, as the border is now sealed). At the same time the new law established an “infiltrator staying facility,” where the state could compel undocumented immigrants, not liable for deportation, to live indefinitely. This facility was speedily constructed by the Israel Prison Service in the Negev desert, far away from populated centers. While it was to be left open in daytime to allow residents to come and go at will, they were required to attend three daily countings and were prohibited to work outside its boundaries. Prison guards were appointed to run the facility and were entrusted with broad disciplinary powers. Judicial review of orders sending people to the “open” facility was limited.

A second petition to the Supreme Court soon followed, and in 2014 another 9-justice panel, this time in a (mostly) 7-2 majority, struck down the legislation the second time around. The Court found that the new legislation had failed to comply with the constitutional guidelines set out in its first opinion. A one-year detention for new “infiltrators” was too long, while the conditions in the “open” staying facility were excessively harmful to the rights of old “infiltrators.” Again the Court gave the political system 90 days to realign.

Two legislative initiatives ensued: one, by Knesset members angered by the Court’s repeated “brazenness,” called for a reform in the rules of the game – entrusting the Knesset with an override power that would allow it to re-legislate a law struck down by the Court with the inclusion of a “notwithstanding” clause, acknowledging its divergence from the Court’s constitutional interpretation. This mechanism, familiar from section 33 of the Canadian Charter of Rights and Freedoms, and used once in Israel in the limited context of its Basic Law: Freedom of Occupation, is often considered a dialogic design, in that it eliminates the final-word nature of court decrees and invites parliament to respond to a constitutional decision with its own constitutional measure. The other initiative was promoted by government lawyers who, perhaps being more institutionally committed to the existing constitutional system, proceeded to draft a third version of the law in another attempt to satisfy a future judicial majority.

A reform in the constitutional rules of the game turned out to be either too tall of an order for a coalition government teetering on the verge of collapse, or merely another half-credible threat in the tense equilibrium that has kept both Court and Knesset relatively tame in their overall activism during the two decades since the introduction of judicial review to Israel’s constitutional system. The second route prevailed instead: under the pressure of the 90-day deadline and an impending election, the Knesset passed last month a third version of the detention statute, leaving most of the original design intact while tinkering with the details in an attempt to alleviate at least some judicial concerns. Thus detention in the closed facility has been reduced from a year (formerly 3 years) to 3 months; stay at the “open” facility has been limited to 20 months, and two of the three daily countings at the facility were canceled, effectively allowing residents to spend full days away (though not nights, and not for work). 

Will this third attempt satisfy the Supreme Court? We will be sure to know, as the constitutional petition challenging it has already been filed. Some commentators predict a third judicial rebuke; I am more skeptical: the Court has cashed a lot of political credit on the first two rounds of this story, and the legislative threats of reforming the fundamentals of the constitutional system have surely not gone unnoticed. But this remains to be seen and updates will come.

What we can do in the meantime is reflect upon the ostensibly impressive dialogic sequence that took place here. Twice the Court struck down legislative acts, and twice the legislature – backed by drafters from the executive – heeded, redrafted, and re-legislated in an attempt to produce a “more” constitutional law, so to speak, or at least one that would qualify as such in the eyes of the given makeup of the Supreme Court. In this dynamic, the judicial interventions do seem to have infused the legislation with important normative information that was lacking – or, more accurately, was too easily discounted – from the legislative process. The Court did not eliminate the power of the Knesset to regulate the issue of undocumented immigration, it merely guided it in the process; indeed the Court repeatedly lauded the state for taking initiative on these matters and confirmed the state’s determination that important public interests are implicated by unchecked migration.

At the same time, something seems to have gone wrong: instead of capitalizing on the Court’s decisions as a means for broadening policymakers’ institutional imaginations and normative horizons, drafters and legislators alike seem to have been bounded by a self-reinforcing tunnel vision. Two heavyweight, nearly unanimous, opinions by enlarged panels of the Israeli Supreme Court could not manage to get policymakers to think seriously of any alternative to dealing with the issue of undocumented migration, other than wholesale detention. Indeed both of the Knesset’s corrective legislation attempts have basically dug deeper, in the sense of further embedding the basic structure opted for in the first round of legislation. As path dependence tightens its grip on institutional practices – time passes, institutional realities entrench – and populist rage about the immigrant “other” heats up, the capacity of the Court to effectuate institutional reform seems to diminish. What sounds like optimal dialogue – two branches going at each other in recurrent, relatively respectful rounds of thesis and anti-thesis until a mutually satisfactory synthesis is reached – might actually be a series of arm-wrestling matches played on the legislature’s terms.

This is of course not necessarily a bad thing, especially if one holds a sensibility of trust in the capacity of majoritarian politics to arrive, over time, at overall morally defensible arrangements. In this view a limited, informative role for a Court is welcome. If, however, one sees in courts a socially important catalyst for creative and experimentalist policymaking, then some rethinking of the way they conduct the practice of judicial review is in order. Should we expect the Court to stay in the design picture even after handing down its legal opinion, for example by having drafters run by it the alternatives being considered before going to parliament? Should the Court include in its very opinion experimentalist guidelines for future policymaking, deferring even less to the discretion of professional and political branches? Or should it opt for broad-stroked decisions, explicitly putting off the table certain possibilities in order to push institutional designers away from the status quo and make them peek out of their existing boxes? These options are familiar from the comparative field. In Israel’s fledgling constitutional system they are still under consideration. As the immigration debate continues in Israel, its constitutional structure is also being tested.

Ori Aronson is Assistant Professor at the Faculty of Law, Bar-Ilan University, and a member of the Academic Advisory Board of the Israeli Supreme Court Project.